*1 of the trial court is ruled. The
affirmed. BENARD and Jennie
Gerald John Appellants, and Point HUMBLE
Lookout Owners’
Inc., Appellees.
No. 09-98-239CV. Texas, Appeals
Court
Beaumont. Feb.
Submitted 22, 1999. April
Decided Seiler, Hope Causey, & Con-
Kenna M. roe, Kitchens, Jr., Evans
Travis E. Groveton, Kitchens, appellees. C.J., BURGESS Before STOVER, JJ. *2 Court, duty
OPINION It is the of this as it court, duty was the trial the to review RONALD L. Justice. Chief wording the language alleged This case involves violations of therefrom, determine the intent of the the Deed Restriction of Point Lookout Es- drafter. See Wilmoth v. tates. Appellants, Gerald John Benard (Tex.1987). 656, 658 impor S.W.2d Most and Jennie rented their however, in tantly our effort to determine homes to various families and individuals intent, liberal construc a weekly on or weekend Appellee, basis. tion to language, seeking the covenant’s Humble, originally filed suit insure that its are given effect. against Appellants alleging several causes 202.003(a) (Vernon of action which included Deed Restriction 1995); Paragon see violations. a Appellants separate filed suit 81 S.W.2d . —Hous against Humble Point Lookout Own- Though [1st ton Dist.] alleging ers’ Inc. multiple statutorily liberally we are to construe the causes of action. Point Lookout also questioned language, liberality must be brought against Appellants. suit These For given example, toned the facts. our three lawsuits were consolidated into the Supreme Texas Court has stated: “Re original from which appeal suit is tak- concerning strictive clauses instruments en. strictly, real estate must be construed fa claims, All with the exception of whether voring grantee against grant- the the there was a violation of the Deed Restric- or, and all resolved in doubt should be compromised tions were settled and be- favor of the free and unrestrictive parties. tween the parties filed an premises.” Huey, Davis Agreed Motion to Dismiss which was used in re Words granted by the trial court. The case was whole, strictions and the restriction as stipulated submitted to the trial court on extended, stretched, not may enlarged, facts. The trial court held that the use of rather, construction; or changed by question “as a vacation commonly words must be ac rental for weekends rentals cepted meaning at the time the covenant to different groups people by JENNIE Wilmoth, was written. at 657- ATTAWAY BENARD is a violation of Further, ambiguity should there exist Deed No. 1” Restriction for Point Lookout meaning, or doubt as to intent or Estates. The trial court further held that against strictly covenant is to be construed any renting period for a of less than same, and to enforce days would also be a violation of Deed favorably and unrestricted toward the free appel- Restriction No. 1. lone premises. Id. at 657. late issue for review asks: Whether the trial court erred in however, judicial must toning This that the Restriction that states: “No lot lose intent. We sight legislative never shall be single-family that the in its enact legislature, believe residence purposes” prohibits renting 202.003(a) ment of intended that restric for a period ninety days of less than in a manner tive covenants be construed prohibits than renting anyone other may occasionally run hard afoul of single family. i.e., strict requirements, strict common law favoring grantee, and strict construction We find no need to set forth details facts, Invari drafter. stipulated choosing from the to focus strong statutory clear lan solely upon ably, whether the trial but court erred 202.003(a) guage in its does not mesh interpretation residence purposes” language. princi- common law contract established However, the trial court agree with we need for recon- creating perpetual pies, afoul of use runs of rental types that the ciliation. purposes pro residential single-family prime example case is a having no definitive trial court vision. Our The deed restrictions the dilemma: guidance law case explicitly do not contain question *3 good to resorted apparently fact situation property. of temporary renting existing of application sense in its common give we to Were Dean, statutory law. case law and covenant, re- we would be drafter of the to protection liberal attempting in judg- trial court’s quired to reverse the purpose provi single-family residential However, understanding the man- ment. sions, considered ANN. Tex. Fam.Code II, § 200.003(a), 1 paragraph § and date of (Vernon 1998), requires which § 6.301 restrictions, provides deed of the residency for the days to establish that, for sin- “No lot shall be In divorce action. filing purposes purposes,” residence gle-family Streater, 239, 243-44 v. Slusher intended give purpose to the attempt ( 1995, no Tex.App. [1st Dist.] pur- residence meaning — Houston writ), dealt with the the Houston Court poses.” voting residency in the context issue of case, were In the the Texas Election Code: and on a “renting” property subdivision that “‘resi- provides 1.015 Section Appellants use of weekend basis. is, domicile, one’s that dence’ means could property as rental place of habitation home and fixed temporary, more described as or aptly any intends to return after which he housing, or purposes, retreat temporary absence.” purposes. than for residential The Tex. Elec.Code rather 1986). (Vernon Residency § 1.015 findings of fact trial court made nineteen Ann. in with the accordance is determined supportive of law four conclusions law, provid- except as otherwise common in declaratory judgment. its This Court Code. Tex. Elec.Code by ed 250 Sargent Ann. (Vernon 1986). 1.015(b) person A 1993, writ), pro no (Tex.App . —Beaumont by her residence not lose his or following observation: does vided the leaving temporarily. home Elec. Tex. construing pertinent in 1986). 1.015(c)(Vernon A pur that their Ann. and relevant so Code in a a residence acquire does not person intents, intendments, poses, and inten she has come tem- to which he or place effective, mandatory it tions be made the intention of and without porarily such ele that the fact-finder ascertain her home. making place that his or intents, purposes, ment as the and inten 1.015(d) (Vernon developers preparing in tions Elec.Code 1986). making public record of the restrictive covenants, restrictions, and other limita one “residence” is an elastic The term Lake Renee governing
tions
Subdivi
extremely difficult to define.
and is
Heights
compare
Travis
sions. See
Bartlett,
Mills
Small,
Ass’n v.
Imp.
meaning that must be
writ).
1983, no
(Tex.App . —Austin
on the circumstances
depends
to it
involved and
surrounding
person
Ostensibly, Appellants argue
present inten-
upon largely depends
rent-
does not exclude
restrictive covenant
/¿Volition, inten-
tion of the individual.
for use of his or
ing
option
as an owner’s
tion,
to be
action are all elements
purposes.”
property,
her
for “residential
per-
determining
where
to be over-
considered
perspective
We believe
resides,
and such elements
son
certainly
non-
Renting per se
broad.
denoting
perma-
equally pertinent
violative of the restrictions
/¿“Neither
nent
residence or domicile.
[1st Dist.]
no
. —Houston
bodily
writ);
presence
alone nor
intention
v. Paragon
residence,
alone will
suffice to create the
1 (Tex.App.
n.
— Houston
but when the two coincide at that mo-
1994,writ
[1st Dist.]
ment the residence is fixed and deter-
and the trial court are
/¿There
mined.”
specific length
is no
quite
correct in
that the covenant
bodily presence
time for the
to contin-
in question
prohibit
does not
the renting of
ue. Id.
Furthermore,
the residences.
a residen-
in determining
Thus the focus
the res-
tial use restriction generally
pro-
does not
idence of a voter is on the voter’s home
hibit
the use of property
duplexes,
and fixed
Espinoza,
habitation.
apartments or condominiums. See Mac-
ingful distinction between the statute and
the rule announced Wilmoth v. (Tex.1987) that “[a]ll
doubts must be resolved favor of the premises,
free and unrestricted
and the restrictive clause must be con strictly against
strued it.”
enforce See Ashcreek Homeowner’s
Ass’n, Inc. v. 588-